This morning I was surprised to find Tim Kowal — one of my few followers on Twitter — defending the constitutionality of laws that discriminate against Boy Scouts, organ donors, Israeli-Americans, and anyone who has ever worn polyester.
These groups, after all, could not possibly have been on anyone’s mind in 1868, when the Fourteenth Amendment was adopted. None of them even existed yet. Original intent, Kowal explains, must guide our interpretation in all cases. Did the framers of the Fourteenth Amendment intend to protect the specific group in question? If not, states can discriminate at will.
We are constitutionally defenseless, then, against laws decreeing that computer engineers must register with the government, that Slovakians may not marry people from Zimbabwe, and that anyone who has traveled to outer space must wear a scarlet A (for astronaut!) to warn others away. None of these were on the minds of anyone in 1868, because none of them existed yet. They get no protections.
And, even while they existed in 1868, I doubt very much that anyone gave a thought to left-handers at the deliberations on the Fourteenth Amendment. They’re probably safe to discriminate against as well. Let’s add to that list redheads, diabetics, and even baseball players.
It appears the only proper remedy for this dire situation is to re-enact the Fourteenth Amendment today, using the exact same language as in 1868. Today, all of these groups certainly are on our minds, and we can therefore extend equal protection of the laws to them.
Whenever new groups come along, we’ll re-enact the Fourteenth Amendment once again, just to make sure that they’re protected, too. We could even make it an annual thing — every Fourth of July, we get a new Fourteenth Amendment, covering iPod owners, people on Twitter, even cyborgs and clones.
Or wait — maybe we could make the Fourteenth Amendment apply to all people. Just one of those crazy ideas, you know, that I got from the text of the amendment itself.
The problem here is that our constitution must absolutely be a set of general principles pointing at liberty, combined with a set of specific operating procedures for government. It needs to be a general grant of liberty, and a limited grant of power, because a limited grant of liberty very quickly begins to eat itself. General grants of liberty, however, must be expressed in general terms, and this necessarily leaves the working out of particulars to each subsequent generation.
If you think that the consequences of including gays and lesbians under the Fourteenth Amendment are bad, you should also consider the consequences of inhabiting forever the mental universe of 1868. I picked some frivolous examples above, but here are a couple of deadly serious ones.
First, women. Tim Kowal is apparently very happy to defend the constitutionality of laws that discriminate against women (short of their voting rights, of course), because women were certainly not the people the framers of the Fourteenth Amendment had in mind. This is a surprising and troubling revelation to me, but one I will certainly remember.
Second, Asian-Americans were probably not on the agenda when the Fourteenth Amendment was passed. Kowal perhaps believes, then, that Yick Wo v. Hopkins was wrongly decided, because the intent of the Fourteenth Amendment was to protect African-Americans alone.
At least that’s what I infer from the sweeping tone of Kowal’s post:
[T]hose who would seek to keep the vital balance between the majoritarian and counter-majoritarian functions of our political system are those concerned with the training and fostering of principled lawyers committed to the sober interpretation of the law to mean what it was intended to mean, not what historians or sociologists or psychologists would argue it has come to mean.
He’s vital, he’s balanced, and he has a fine command of glowing language — he’s even sober! — but unfortunately, he’s also dead wrong.
On many different subjects, our constitution articulates general rules of fair play without filling in the details. This approach is both wise and necessary. It is mere hubris to imagine that we can articulate perfectly and in every detail all aspects of justice, for all times and places, given the knowledge and the prejudices of the present. We can, however, see the general principles of such a justice.
Aiming at this general idea of justice was the original intent of the framers. If they had intended to protect only African-Americans, it was easily in their power to say so. Instead, they gave us a text that expresses a broad principle applicable to all people.
It falls to us, and not to the dead hand of 1868, to work out the details. In this we are not changing the meanings of the words. On the contrary, we are being true to them. We are uncovering the full implications of justice, which were not known perfectly by 1868 any more than they are known perfectly to us. The principles are eternal, and they are there on the page. But the work of realizing them lasts an eternity.
Update: Kowal replies in the comments, retracting some parts of his post.